| People v Harper |
| 2012 NY Slip Op 07690 [100 AD3d 772] |
| November 14, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Glendine Harper, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Suzanne H. Sullivan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.),rendered July 28, 2008, convicting her of assault in the second degree and criminal possession ofa weapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings upfor review the denial (Roman, J.), after a hearing (O'Dwyer, J.H.O.), of that branch of thedefendant's omnibus motion which was to suppress physical evidence.
Ordered that the judgment is reversed, on the law, that branch of the defendant's omnibusmotion which was to suppress physical evidence recovered from the defendant's apartment isgranted, and a new trial is ordered.
Upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict ofguilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). However, we order anew trial on the ground that the physical evidence recovered from the defendant's apartmentshould have been suppressed. Moreover, contrary to the People's contention, the failure tosuppress the physical evidence was not harmless error.
The following testimony was adduced at the Mapp hearing (see Mapp vOhio, 367 US 643 [1961]), prior to trial. On the evening of the incident giving rise to thedefendant's indictment and conviction, police officers responded to reports of a dispute in thehallway of an apartment building in Queens. When they arrived at the location, a trail of bloodled officers to the complainant's apartment on the second floor, where they found her bleedingfrom several cuts and lacerations. The complainant told the police officers that she had beenstabbed by the two women who lived in the apartment directly above hers.
Upon this information, Sergeant William Sommer and another officer went upstairs to thethird floor and knocked on the door of the defendant's apartment. The defendant answered [*2]in her robe and admitted that she and her daughter, who was stayingwith her, had been involved in an altercation with her downstairs neighbor. The two women wereplaced in handcuffs in the hallway. At that point, Sergeant Sommer asked if anyone else wasinside the apartment, and the defendant said no. The sergeant asked if he could verify that no oneelse was in the apartment, and the defendant agreed. While in the apartment, the sergeant saw aknife and a machete in plain view, and these items were recovered. The defendant and herdaughter were placed under arrest. Subsequently, the defendant moved, inter alia, to suppress thephysical evidence, and the hearing court, among other things, denied that branch of the motion.
Contrary to the People's contentions, the warrantless search was not justified by eitherexigent circumstances (see People v Mitchell, 39 NY2d 173, 177-178 [1976], certdenied 426 US 953 [1976]) or the defendant's alleged consent (see People vGonzalez, 39 NY2d 122, 128 [1976]). Given that the altercation had ended by the time thepolice arrived, the injured complainant had been identified, and the two alleged assailantsapprehended, the emergency exception to the warrant requirement did not apply (see People vFields, 45 NY2d 986, 988 [1978]). The sergeant did not have reasonable grounds to believethat another victim was in the defendant's apartment (see People v Mitchell, 39 NY2d at177-178; compare People vRodriguez, 77 AD3d 280, 285-287 [2010]). Likewise, the "protective sweep" exceptionalso did not apply "in the absence of a factual predicate from which the [sergeant] couldreasonably infer that the apartment contained a third person" who might destroy evidence or posea threat to the officers or the public (People v Bost, 264 AD2d 425, 426 [1999]).
Whether consent to a search is voluntary "is a question of fact to be determined from thetotality of all the circumstances" (Schneckloth v Bustamonte, 412 US 218, 227 [1973]),and "[n]o one circumstance is determinative of the voluntariness of consent" (People vGonzalez, 39 NY2d at 128). Under the particular circumstances of this case, which included,inter alia, the facts that the defendant was handcuffed outside of her apartment and was told thatthe purpose of the entry was to check for individuals only, the People failed to meet their burdenof proving the voluntariness of the defendant's consent to the search (see generally People vGonzalez, 39 NY2d at 128; People v Chou, 203 AD2d 299, 300 [1994]; cf.People v Richards, 119 AD2d 597, 597-598 [1986]). Accordingly, that branch of thedefendant's omnibus motion which was to suppress the physical evidence should have beengranted. We further conclude that this error was not harmless beyond a reasonable doubt (cf.People v Smith, 97 NY2d 324, 330-331 [2002]), as the evidence of the defendant's guilt,without reference to the knife and machete recovered from her apartment, was not overwhelming(cf. People v Arafet, 13 NY3d460, 467 [2009]). Here, the prosecution's only witnesses to the altercation were thecomplainant, who gave a conflicting account of what happened, and her fiancÉ, whoarrived after the fight had already begun.
The defendant's remaining arguments are without merit. Angiolillo, J.P., Florio, Leventhaland Cohen, JJ., concur.